Accountability, the Minister and the Independent Panel
How will the Independent panel be accountable?
The Independent Panel is selected by the Tasmanian Planning Commission (the Commission) and is required to consist of a member of the Commission who acts as the Chair, a representative from the local council where the project is located, and an expert in the field of the project. Importantly, all Independent Panel members are bound to conduct themselves in accordance with the requirements of the Tasmanian Planning Commission Act 1997.
Can appeals be made after a decision is made?
The process of an appeal to the Resource Management and Planning Appeal Tribunal (RMPAT) is provided for ordinary development applications made to local councils under the planning scheme in force. RMPAT establishes a panel for the purposes of reconsidering the application against the planning scheme. Where there are proposals to vary the planning scheme either on its own or as part of a specific project, the decision is made by a panel appointed by the Tasmanian Planning Commission.
The only appeals against the determinations of the Tasmanian Planning Commission are to the Supreme Court under Judicial Review. The Major Projects Bill relies on a determination by an independent panel selected by and operating under the Tasmanian Planning Commission Act 1997. Providing an appeal to RMPAT against the Independent Panel’s determination would be like having one expert panel testing the decision of another expert panel.
An appeal provides for a more detailed submission of evidence in favour of or against the proposal and the testing of that evidence through a public hearing. This is exactly what the Major Projects Bill proposes through the Independent Panel’s public hearing procedures.
An appeal under judicial review is available to those who consider that the Independent Panel or the Regulators have not conducted their assessments appropriately. The Minister’s declaration of a project can also be challenged through judicial review.
Why is the final decision on a Major Project made by an Independent Panel and not the Local Council?
Even if the proposal does not require an amendment to a planning scheme, the Major Project process is intended to look beyond the boundaries of a single council area and consider the broader issues associated with the project. In the interests of balancing the views of the local community and the broader region, an independent panel to assess the proposal is considered the most appropriate. This model is also in line with all other states and territories in Australia and also in accordance with best practice planning processes.
Local government accepts that some parts of the planning system (amendments) and key projects, such as Projects of Regional Significance (PORS) or Projects of State Significance (POSS), should be assessed by independent experts such as the Tasmanian Planning Commission. The Independent Panel is independent from State Government and includes at least one Local Government representative.
Can the Minister direct the Independent Panel to approve a Major Project?
No, once the Minister declares a major project he/she has no further role in the consideration of the merits of the proposal. All the Minister can do is grant extensions of time to the Independent Panel or revoke the major project at any time during the process.
Can the Minister ‘hand pick’ the Independent Panel members?
No, the Independent Panel members are selected by the Tasmanian Planning Commission (the Commission). As a minimum the Bill requires the Independent Panel to consist of a member from the Commission, a member from the local council (where the major project is located) and an expert in the field of the major project. The Minister can request the Commission to appoint an additional expert, but the Minister is not able to say who that fourth independent panel member is.
Has the Tasmanian Planning Commission been sidelined?
The Tasmanian Planning Commission (the Commission) has not been sidelined. In fact it operates in a similar way to how it does for most of its normal work, which is by delegating assessments and determinations to panels. Those panels can consist of one or more Commissioners (except those representing Government interests) and other delegates who may be senior Commission staff. The Major Projects Independent Panel includes a member or delegate of the Commission. The Independent Panel also has a local government representative and an expert relevant to the project. As such the full panel membership will be able to cover regional issues through the Commission representative, local issues through the local government representative and project specific issues through the panel expert. In combination these panel members, along with the advice from the regulators will ensure that each and every major project will undergo a robust thorough assessment.
Also, the structure of the Independent Panel is unchanged from the Projects of Regional Significance (PORS) process. However, the Major Project process has introduced procedures for the Independent Panel to follow, which were not in the PORS process. These procedures require the Independent Panel to adhere to part 3 of the Tasmanian Planning Commission Act 1997 and include processes for dealing with conflicts of interest.